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THE PEOPLE v. DAMIEN JEVON HODGES

COURT OF APPEAL, FOURTH APPELLATE DISTRICT STATE OF CALIFORNIA DIVISION ONE


November 30, 2010

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
DAMIEN JEVON HODGES, DEFENDANT AND APPELLANT.

Appeal from a judgment of the Superior Court of San Diego County, Louis R. Hanoian, Judge. (Super. Ct. Nos. SCE291466)

The opinion of the court was delivered by: Haller, Acting P.J.

P. v. Hodges

CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Affirmed.

Damien Jevon Hodges pled guilty to robbery (Penal Code,*fn1 section 211); admitted he personally used a firearm in the commission of the robbery in violation of section 12022.53, subdivision (b); admitted two prior strike convictions (a 2001 robbery from Pennsylvania and a 2007 armed attempted robbery from Illinois) in violation of sections 667, subdivisions (b) through (i), 1170.12 and 668; and admitted that these two convictions were serious felonies within the meaning of sections 667, subdivision (a)(1), 668 and 1192.7, subdivision (c).

In accord with the trial court's representation when defendant entered his guilty plea, the court struck the Illinois strike prior conviction. The court then sentenced Hodges to 26 years in prison consisting of the six years for the robbery (double the middle term based on the remaining strike prior conviction); 10 years for the personal gun use enhancement; and five years for each of the serious felony prior convictions.

FACTS AND PROCEDURAL BACKGROUND

On June 7, 2009, Hodges entered a store in El Cajon, pointed a gun at the store clerk and demanded money. The clerk complied. Hodges left the store and entered an SUV in the parking lot that was being driven by another man. The clerk recognized the SUV from an encounter earlier that evening. About an hour before the robbery, the driver of the SUV entered the store, asked the clerk about a particular brand of candy, purchased a different kind of candy, and left. Because the clerk had been robbed the week before at the store, he thought this conduct was suspicious and recorded the license number of the SUV.

The clerk gave the SUV's license plate number to law enforcement officers, and as the SUV was fleeing from the store, he pointed it out to an officer who had responded to the scene. Two officers followed the vehicle, and stopped it within blocks of the store. Hodges exited from the rear driver side door and ran down an alley. Hodges was found hiding in a nearby dumpster and apprehended. Money was located inside a cardboard box within the SUV and a handgun was found in a dumpster along the path Hodges had used when he fled. The clerk identified Hodges as the person who had robbed him at gunpoint.

At sentencing, Hodges argued that one of his prior strike convictions (the armed attempted robbery from Illinois) was not valid. Because the court had indicated that it intended to strike one of the strike priors in accord with People v. Superior Court (Romero) (1996) 13 Cal.4th 497, it struck the Illinois strike prior, rendering the argument moot. After reviewing the record of conviction concerning the Illinois prior, including the transcript of Hodges's guilty plea hearing and the Order of Commitment and Sentence, the court concluded that the Illinois prior was a serious felony as defined by section 1192.7, subdivision (c)(23). The court observed that those documents established that Hodges was convicted of a felony and that he had used a deadly or dangerous weapon (a baseball bat) during the commission of the felony.

DISCUSSION

Appointed appellate counsel has filed a brief summarizing the proceedings below. Counsel presents no argument for reversal but asks that this court review the record for error as mandated by People v. Wende (1979) 25 Cal.3d 436. Pursuant to Anders v. California (1967) 386 U.S. 738, counsel refers to one possible but not arguable issue: whether defendant was advised of his right to a jury trial and waived that right as to both the substantive offense and prior offense allegation. We granted Hodges permission to file a brief on his own and he has not responded.

A review of the record pursuant to People v. Wende, supra, 25 Cal.3d 436 and Anders v. California, supra, 386 U.S. 738, including the possible issue referred to by appellate counsel, has disclosed no reasonable arguable appellate issues. Competent counsel has represented Hodges on this appeal.

DISPOSITION

The judgment is affirmed.

WE CONCUR: MCDONALD, J. O'ROURKE, J.


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